Sometimes my wife needs to remind me of the importance of making healthy food choices because it is far too easy to pull up to a drive through window while on the road. She is always encouraging me try to stop someplace where I could have a more balanced meal. The point of this is to suggest that perceived time demands and busy work schedules can start the process of excuse making, whereby many of us can begin to rationalize that this or that time saving shortcut is warranted. Further, if we fail to periodically remind ourselves of the importance of thorough follow through, these shortcuts can eventually become engrained bad habits and that’s potential trouble. While all of the following tips have been written about in one form or another over the years, there is value in bringing them together as a simple reminder of the importance of each. With this in mind, try not to do any of the following.
1) Fail to document scope - particularly with established clients. Scope of representation should be documented in every discrete file for which an attorney is responsible. This does not mean that a formal contract is called for every time a long-term client brings a new matter to the firm. Scope of representation can be documented in a “Thanks for stopping by” letter, a confirming email, or a letter of clarification. You don’t want to allow assumptions to come into play. While you may feel that you have been retained to handle a certain task, the client may feel certain that instructions regarding an additional task were passed along. Understand that in the world of discipline and malpractice, if a word against word dispute with any client ever arises, you’re going to be the one on the ropes. This is just one of the reasons why it is so important to document scope at the start of every new matter.
2) Fail to keep the client informed. Always remember that you are in your client’s employ and that the matters or cases you are handling for them are their matters or cases and not yours. This means that all phones calls must be promptly returned and requests for information timely responded to. Keep clients informed of all court dates, all filings, and all offers to settle or mediate. They should be told what the scope of representation is and also what it is not. They should be informed of their rights, especially in criminal matters. The ramifications of any actual or potential conflict issue should be fully explained prior to their agreeing to representation. Client permission should be obtained for granting extensions of time to adverse parties, stipulating to evidence or testimony, agreeing to continuances, making and/or rejecting settlement offers, and the like. Clients expect to be told when their matter has concluded and what, if anything, they must yet do. Whether through inability or oversight, clients must also be informed of a failure to take action on their matter or that their case has been dismissed. This is the level of service and type of information that all clients reasonably expect from their attorney.
3) Fail to do today what can be put off until tomorrow. The reasons behind procrastination are many. An attorney may assume that someone else is taking care of the matter, may not have a complete understanding as to how to handle a matter, or simply has too many matters open. Being afraid of imparting bad news, not wanting to deal with a “problem client,” or hoping that with enough time the problem will go away are other reasons why attorneys procrastinate. Sometimes the problem is an inability to organize work and a matter has been forgotten about. Sometimes there is an inability to appropriately prioritize work and there is a failure to appreciate the importance of completing certain work in a timely fashion. At other times, procrastination arises for reasons that are more personal. An attorney may be depressed or burned out and unable to find the energy to finish a matter or the attorney may be impaired and not thinking clearly. Regardless of what might be driving any procrastination, learn to recognize it for what it is and address the problem. Sooner or later procrastination will lead to problems such as losing a good client, missing a critical deadline, or having a disciplinary complaint filed against you. Don’t put off until tomorrow what can be accomplished today!
4) Fail to acknowledge your limitations. In short, don’t dabble. There is no such thing as a simple will, simple contract, or a cut-and-dried personal injury case. If you are not prepared to handle the difficult cases in a given area of practice, don’t accept the seemingly simple things because you may fail to see where the true problems are. Why? Because we don’t know what we don’t know and the failure to keep this in mind has caught a number of attorneys off guard over the years. Yes, you can develop the expertise given sufficient time but keep in mind that sufficient time will often be far more than meets the eye at first glance and the client is usually not willing to pay for it.
5) Fail to confirm that a file is now closed. Always document that the representation has ended and inform the client that their file is about to be closed, or that a file relative to a particular matter for an on-going client will be closed. A letter of closure sent at the conclusion of representation can meet this need quite effectively. This letter can serve several purposes beyond documenting that the attorney and client understand and agree that representation has ended. It provides an opportunity to inform the client about any continuing responsibilities that might flow from the matter such as clarifying who will be responsible for maintaining the corporate records and taking care of the annual filings necessary to maintain the corporate existence after forming a small business. The closure letter may also help sort out potential future conflict of interest problems because it serves as documentation that a once current client is now a past client. Finally, this letter can be a great place to set forth your firm’s file retention policy so clients know what will happen to their file over time and how they might gain access to it should the need ever arise.
6) Fail to maintain some minimal level of attorney oversight of client property. An attorney should review all client trust fund account reconciliations at the end of each month. This will help catch any inadvertent errors that are made in payments and assure that all funds on deposit for each client can be regularly accounted for. Many firms will require that the bank statement be delivered to an assigned reviewing attorney unopened. This attorney will look for forged checks and make certain that there is a check for each debit entered on the statement prior to forwarding these materials to the individual responsible for reconciling the account. Once the reconciliation is complete, the reviewing attorney should be given a copy of the reconciliation report along with the original bank statement to enable a review of the numbers. Consider designating one partner (or this duty could be rotated) to handle these tasks. Virtually every state bar has promulgated rules indicating that every attorney in a firm has the responsibility for making sure the trust or escrow account is in proper order and reliance on a bookkeeper or CPA does not nullify those responsibilities.
7) Fail to appropriately supervise staff. By way of example, consider a busy real estate practice where an attorney has assigned to one staff member the following tasks: title search responsibilities, preparation of the settlement packages, and other administrative tasks. Consider also that this same staff member is already trying to manage an excessive file load. Under these circumstances it isn’t hard to imagine a mistake, such as listing and paying the wrong party as mortgagee, eventually occurring. This kind of mistake can happen because the attorney is working with erroneous assumptions. Perhaps the attorney may be assuming that the staff member can handle a heavy caseload and is properly trained, when in fact, the employee can’t handle the load or isn’t properly trained. Just because an employee doesn’t speak up doesn’t mean there isn’t a problem.
Attorneys must supervise their employees. Ensure that all staff members have the necessary tools and training, as well as the appropriate environment, so they can efficiently and accurately carryout their duties. Rule 5.3 of the Rules of Professional Conduct makes attorneys responsible for ensuring that all members of the staff are competent. This means that if any one of them ever makes a mistake, you’re going to be the one responsible for the fallout.
8) Fail to plan for the unexpected. Perhaps the most significant concern in this list is the issue of proper calendaring practices as the unexpected can and does happen, be it a fire that destroys the office building, a weather event that results in an early and unexpected closure of the court house, or even a computer crash that makes document preparation nearly impossible. Calendaring errors remain the leading cause of malpractice claims and they occur for all kids of reasons. Common mistakes include data entry errors, failure to use file review dates, absence of a backup calendar, and waiting until the last minute to file documents. To avoid this trap, an office must have at its organizational core an office-wide master calendar and established calendaring guidelines. The system should contain the following characteristics:
- Be easy to use, maintain, and teach to new personnel
- Include some redundancy, either through multiple paper or computer calendars
- Provide for an off-site calendar backup in the event of a fire or other disaster
- Have the capacity to crosscheck between a master calendar and the backup calendar to catch calendaring errors which will occur from time to time
- Have at least one reminder date for every open file to ensure that all files are reviewed on a regular basis
- Include tracking procedures that enable the firm to identify who made any given entry
- Make all attorney and non-attorney staff accountable
Develop a standardized calendaring policy that sets forth all types of items to be calendared, the expected frequency and timing of reminder dates, the applicable deadlines for the various types of cases the firm handles, and the firm's own deadlines for events it considers critical. For example, a firm might require all lawsuits to be filed no later than 30 days prior to the running of the statute of limitations.
9) Fail to financially screen your clients. Fee disputes are at the heart of a significant percentage of all legal malpractice claims brought against attorneys each year. Typically, an attorney sues his client for unpaid fees and is then countersued for legal malpractice. In some cases, merely mailing a final bill triggers threats of legal malpractice. Given this, don’t ever accept a client who cannot afford your legal services. It is a lose/lose situation to take on a client who is overly concerned about fees and/or who ultimately will not be able to pay your bills.
10) Fail to successfully manage the client relationship. Listen to your client. This is their legal matter. For example, clients don’t always want to pursue litigation. Take time at the beginning of the attorney-client relationship to identify clearly the client’s goals or objectives. Ask questions. Consider and propose alternative directions or solutions. Let clients feel some control in resolving their issues where appropriate.
Be personable. Pleasant conversation or a little levity when appropriate can demonstrate that you are invested in the client as a person. Clients will feel that you view them as more than just a money source. For business clients, learn as much as you can about the client’s business or industry. The more a client gets to know you and you them, the easier it will be for the client to place confidence and trust in you.
Teach your support staff about the importance of courtesy, timeliness, professionalism and confidentiality when dealing with clients. Your staff is regularly the interface between attorneys and clients. It is important to understand that if staff members are depressed, overworked, feel taken for granted, or are dissatisfied generally then negative messages, however unintended, are going to reach your clients.
Finally, consider ways to let your clients know that they are important to you, and then put those ideas into action. For example, as you meet your next client, Ms. Smith, in the lobby, say to your receptionist, “Please hold all calls. The next hour belongs to Ms. Smith.” That kind of sentiment and statement can work wonders.